FOIA needs new muscle behind it, not just promises

These are busy days for Freedom of Information. On April 5, the watchdog Web site that knows no borders, WikiLeaks, posted a classified U.S. military video showing U.S. forces firing on Iraqi civilians, killing many, including two Reuters journalists, as well as wounding children. Two days later, the Pentagon posted a redacted U.S. military assessment of the same incident concluding that U.S. troops fired “in accordance with the law of armed conflict and rules of engagement.” The very same day President Obama hailed the scheduled release of a new Open Government Initiative by all Cabinet agencies to improve transparency and compliance with information requests.

Congress is frustrated with the lack of
transparency, too. On April 15, the Senate Judiciary Committee sent a bill with
bipartisan support to the full Senate for consideration. Sponsored by Chairman
Patrick Leahy (D-VT) and Sen. John Cornyn (R-TX), the Faster FOIA or Freedom of
Information Act 2010 would establish a new oversight commission to study why U.S. agency
responses to information requests are often incomplete or delayed.

It’s about time. Until now, U.S. military
commanders had largely covered up the July 2007 incident above in the Iraqi
suburb of New Baghdad, telling
the press that they were firing on insurgents, killing approximately a
dozen people along with two journalists who got caught up in the crossfire. But
the now-posted U.S. military video shows as many as two armed men among the
group that was fired on, and both of the armed men, who may or may not have
been insurgents, carrying their weapons over their shoulders and not firing at
all; U.S. military helicopters firing on a wounded individual being rescued by
other men with no weapons within reach or even sight of all three of them,
which U.S. forces’ voices recorded on the video also confirm. CPJ sent a letter
today to Defense Secretary Robert Gates pointing out that several experts
on international humanitarian law are calling for investigations to determine
whether U.S. forces
complied with such law when they fired on unarmed, wounded men.

Moreover, over the past three years while U.S.
military commanders concealed most of the information, officials at the
Pentagon in Virginia and U.S. Central Command at MacDill Air Force Base in
Florida also refused to release the video, which was taken from a U.S. Apache
helicopter gunship, even though Reuters had long
requested it along with other information through the U.S. Freedom of
Information Act.

U.S. cable television networks
only showed short clips, editing out the more graphic images and audio
commentary by U.S. soldiers
involved in the shooting to their U.S. audiences. But non-American networks
from the BBC to Al-Jazeera broadcast the video to hundreds of millions of
viewers in nations worldwide. Hmm? Perhaps the Vatican is not the only large
institution these days in need of reviewing how it communicates and manages information.
Obama’s plan is to create not only new avenues for faster compliance to information
requests in nearly every U.S. agency, but to also establish a “FOIA Dashboard”
or Freedom of Information Act “visual report card”
at the Department of Justice to both promote transparency and monitor
compliance across U.S. agencies.

Obama has made similar promises before, however,
only to break them later. The very day after his inauguration he instructed U.S. agencies
to “adopt
a presumption in favor of disclosure” when handling FOIA requests. But
instead, agencies only increased their use of possible legal exemptions to
avoid replying to FOIA requests during Obama’s first year in office, according
to a review of agencies by The Associated Press. Sen. Charles Grassley (R-IA),
a member of the Senate Judiciary Committee, sought legislation to examine how U.S. agencies
handle FOIA requests after the AP investigation.

Similarly, most of CPJ’s FOIA requests in recent
years have either been denied or delayed, or somehow fallen into a bureaucratic
black hole. One
day in April 2003 in Baghdad, U.S. military forces separately fired airstrikes
on the Baghdad bureaus of two critical Arabic-language
satellite networks, Al-Jazeera based in Qatar,
and Abu Dhabi TV based in the United
Arab Emirates. The same day, a U.S. tank unit fired on the Palestine Hotel
where many “unilateral” or journalists moving independently of U.S. forces
were based. Three journalists were killed and four were wounded in the three
attacks. CPJ filed FOIA requests to the Pentagon asking
for more information about all three incidents.

The U.S. military eventually released its own
detailed investigation looking into why a U.S. tank commander ordered the
strike on the Palestine Hotel: The tanks were coming under increasingly close artillery
fire and they feared that figures on the hotel roof with binoculars (who may or
may not have been journalists) may have been directing the artillery fire; the
report also repeated unsubstantiated claims that hostile gunfire was also
coming from inside the hotel. By then CPJ had already completed its own comprehensive
investigation, which concluded that with better U.S. military communication as well
as command and control over targeting decisions this particular tragedy at the
Palestine Hotel might have been avoided.

But the Pentagon has simply failed to provide any
information at all concerning the two U.S.
air strikes the same day on the Baghdad
bureaus of two significant broadcast critics.

The U.S. military has also failed to
respond to a CPJ FOIA request about another incident. Three weeks earlier, a
camera crew from the British-based ITN
television network disappeared while covering combat involving U.S. forces near Zubayr, Iraq;
correspondent Terry Lloyd’s corpse
was later found, but both Fred Nerac
and Hussein Othman remain
missing.

In total, no fewer than 16
journalists have died in incidents involving U.S.
forces in Iraq,
according to CPJ research. But the Pentagon has released comprehensive
information in only two other attacks in which journalists were killed besides
the incident involving the Palestine Hotel. One was the fatal shooting by a
machine gunner atop a U.S.
tank of Reuters cameraman Mazen
Dana (who less than two years earlier had been awarded CPJ’s International Press Freedom Award
for his work in his native West Bank and Gaza).
Not unlike the scenario shown in the WikiLeaks video, in which U.S. soldiers clearly
mistook at least one Reuters journalist with a camera for an insurgent armed
with a rocket-propelled grenade, the machine gunner who shot and killed Dana
also appears to have mistook the Palestinian cameraman, whom he later told U.S.
military investigators had “dark
skin and dark hair,” for an insurgent holding not a camera but a
rocket-propelled grenade.

The U.S.
military report on the Dana shooting, like the one on the Palestine Hotel tank
firing, exonerated the U.S.
soldiers involved. But the military report on the Dana shooting also
recommended that the Pentagon review its own rules of engagement to try to avoid
such tragic cases of misidentification in the future. “Recommend that
[commanders] review [the] Rules Of Engagement against the current enemy threat
in the Iraqi theater to make a formal assessment if modifications are necessary
to the Rules Of Engagement,” reads the “Investigation Recommendations” of the
117-page U.S. military assessment.

That sounds a lot like the recommendations made by
both CPJ and Human Rights Watch in a 2005
letter to then-Defense Secretary Donald H. Rumsfeld. In fact the whole
point of pressing the Pentagon to release information is not necessarily to
assign blame to any soldiers involved in such incidents, depending upon the
circumstances. But to try and find common sense ways to see if such incidents—that
everyone now agrees in hindsight are tragedies—could have been avoided. Or, as
the U.S.
military report on the Dana shooting succinctly puts it, to explore whether
it might be possible to make “modifications to the Rules Of Engagement without
compromising force protection.”

Another such case of tragic misidentification occurred
at a U.S. military
checkpoint in Baghdad in March 2004 when
soldiers fired
on a press vehicle killing two journalists from the Al-Arabiya satellite
network based in the United
Arab Emirates. The U.S. military investigation of this incident,
however, failed to reconcile conflicting statements between civilian witnesses
and U.S.
soldiers. But the report is nonetheless valuable to help further a constructive
discussion. The military completed its own investigation of this incident
within 11 days of the fatal shooting, according to the report itself. CPJ filed
a FOIA request to the Pentagon asking for information the same month. But the
Pentagon inexplicably waited three years before finally releasing the report.

The Freedom of Information Act purports to
provide “an important means through which the public can obtain information
regarding the activities of Federal agencies" and requires Federal
agencies to make their FOIA programs "citizen-centered
and results-oriented." But in practice the many legal loopholes in the
law along with the process’ irregular as well as secret forms of oversight have
left it largely up to individual administrations and their respective agencies
to decide how responsive they wish to be to information requests. Obama’s nice,
new initiative sure looks bright on the White House Web site.
But it will need teeth and muscles if the new promise is to produce any better results.

Here’s food for thought. If the Pentagon had
been more forthcoming, say, about the 2007
New Baghdad shooting long before WikiLeaks posted the military’s own embarrassing
video of it for countless people to see, then the debate today would not be
over the actions and words of the U.S. soldiers involved. Instead it would have
been over how to best adjust the rules of engagement toward both saving
civilian lives while still protecting U.S. troops. That’s hardly a
radical or even idealistic notion. It’s exactly what the Pentagon’s own report
on the Dana shooting recommended.

Comments

“Collateral Murder”

An intentional effort has been put forth here to distort the facts that are not obvious when casually viewing this film. In addition, there is a great deal of misinformation posted with this video at “Collateral Murder” site which is nothing more that out right lies!

Take the van for example. Freeze the video at :27 and note the parked bus near the top right corner. The van will be soon be seen passing by this bus at :39. Now note the two dark objects in the top right corner. Careful analysis reveals that the near dark object is actually the van which is stopped facing east with a someone standing by the drivers side door. The far dark object is the front of the flatbed which is in the open courtyard where the insurgents are gathered. Some of them appear to be standing on the right side of the flatbed in this view.

[Keep in mind here that the van is moving south on this road while later, when the photographers come into view, they will be walking north on this same road.]

These and other facts are revealed when earlier clips are compared to older ones. Doing so enables us to start with the object like the far dark object mentioned above, at :27, and skip ahead to other sections that contain this or nearby objects thereby revealing information that’s not evident when viewed in the typical way. Note here that the object next to the far dark object is rectangular, highly reflective and nearly parallel with the dark object. Following it around as the camera pans leads us to 1:29 to 1:32 where we find an aluminum tanker truck beside a flatbed. Thus we know this dark object beside the road in :27 is the front part of the flatbed in the courtyard.

Now freeze at :40. The Van, called a black vehicle by the pilot, is seen passing by in front of the parked bus. Note the color of the van. Top 2/3 is dark and bottom 1/3 is light. Compare this to the picture of the van at WikiLeaks site. It’s the same van that tries to rescue Saeed later! Also compare picture at WikiLeaks to van at 10:41. Note the bumper, headlights and windshield with bullet hole. The van in WikiLeaks photo has been damaged further to make the attack look worse than it really was.

There is little doubt Saleh dropped off the two photographers and one other person. Along with the guy that was standing by the van at :27 they all started walking north toward the courtyard. Two from the courtyard walked briefly south to meet them and can be seen in the distance at 1:25 to 1:28.

This tells us that, after dropping the photographers off, Saleh was taking his children to their school. This plan was cancelled - at 35mph he is less than 3 miles from where he dropped off the photographers - when he got a call from Saeed at 3:12 telling him they were ready to be picked up. While on the phone he hears the helicopter attack! He may have heard Saeed cry out for help. Rather than take his kids to school Saleh decided to go back to see what the hell happened! At 35mph, being about 2 1/2 miles from the drop off point, it takes him roughly 4 1/2 minuets to get back to the wounded Saeed at 7:42

All of this only proves the truth about the van. The truth that remains is revealed once you realize that the ten in the video at 3:16 are all depicted in 1:33. Trace the movements of each one separately and discover that they are all definitely hostel combatants!